This information below comes from "the l.i.n.k." which covers a whole
range of electronic commerce stuff, and which you can subscribe to by
emailing editor§the-link.lu or by going to www.vocats.com.

Cheers
David

8. DOMAIN NAMES
AUSTRIA
COURT RULING ON
PUBLIC INSTITUTIONS DOMAIN NAMES
In a recent case (4 Ob 39/15 - Rechnungshof), the Austrian Supreme
Court decided on the use of the domain www.rechnungshof.com by a
private person, with Rechnungshof being the federal audit office. The
web site contained the statement, that it does not have any official
character, but no link to the official web site of the Rechnungshof
was provided. Instead, the web site announced that it contains "all
insider information from the Austrian federal audit office". The
court ruled that this presentation did constitute an infringement of
the Republic's right of name (sec 43 of the Austrian Civil Law Code)
because it appeared to provide information originating from sources
related to the federal audit office and and as such created a
potential risk of image loss for the official institution.
This decision does not appear to be fully in line with the court's
previous rulings in similar cases. In an earlier decision dating back
to September 2000, the court dealt with the use of the domain
www.bundesheer.at by a private person. Bundesheer is the official
name for the Austrian federal armed forces. The respective homepage
presented itself as an information platform related to military
topics, stating that it was in no way related to the federal armed
forces and provided a link to the ministry's official web site. Here,
the court decided that the Republic's right of name was not infringed
by the use of the word Bundesheer on a private homepage, because the
domain owner had avoided any possibility of confusion for  internet
users.
For more information see: www.internet4jurists.at
CANADA
COURT DECLINES JURISDICTION
IN DOMAIN NAME DISPUTE
On 15th August 2001, the Ontario Superior Court of Justice in
Easthaven Limited v. Nutrisystem.com Inc. declined jurisdiction in a
case involving a dispute over the domain name "sweetsuccess.com".
The defendant, Nutrisystem.com Inc., is a corporation incorporated
under the laws of the State of Delaware with its principal place of
business in Pennsylvania, USA. It is engaged in the marketing, sale
and distribution of weight loss programs, including over the
internet. It is the owner of the trademark "sweetsuccess," registered
in the United States.
The plaintiff is incorporated under the laws of Barbados and has its
head office in Barbados.
Easthaven and Nutrisystem had previously brought their dispute before
a US district court in Pennsylvania and had commenced proceedings
under ICANN's Uniform Domain Name Dispute resolution policy.
Easthaven commenced its action in Ontario in the attempt to prevent
Tucows Inc., the domain name registrar, from transferring the
disputed domain name to Nutrisystem.
Nutrisystem moved to dismiss the later claim on the basis of res
judicata, abuse of process or forum non-convenience.
The Ontario court declined jurisdiction, finding that there was no
"real and substantial connection" between the subject matter of the
action and the right of the court to assume jurisdiction over it.

The Ontario court found it difficult to characterise a domain name as
either real or personal property since it lacks physical existence
(it left open the possibility that a domain name is a form of
intangible property).
According to the court, the mere fact that the disputed domain name
was registered through a corporation that carries on business in
Toronto (i.e. Tucows), does not give the domain name a physical
presence in Ontario. Since neither of the parties, nor even the
disputed domain name had a sufficient connection with the Province of
Ontario, the court declined jurisdiction in this matter.
The decision is interesting insofar as it struggles with a subject
that has been the source of jurisprudential controversy, namely the
precise legal nature of a domain name.
For more information see: http://aix1.uottawa.ca/~geist/easthaven.htm
or contact: cmorgan§mccarthy.ca



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